Zhao v Police
[2014] NZHC 1328
•13 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-301 [2014] NZHC 1328
BETWEEN XI MENG ZHAO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2014 Appearances:
N K McDonald for Appellant
J B Hamlin for RespondentJudgment:
13 June 2014
JUDGMENT OF KEANE J
This judgment was delivered by me on 13 June 2014 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Oranga Law, Auckland
Crown Solicitor, Auckland
ZHAO v POLICE [2014] NZHC 1328 [13 June 2014]
[1] On 14 October 2013, after a defended hearing in the District Court, Auckland, Xi Meng Zhao was convicted of driving on 24 January 2013 with an excess breath alcohol level, 776 micrograms. She was fined $750 and disqualified for six months.
[2] Ms Zhao appeals her conviction on the single ground that the Judge, Judge C J Field, was wrong to hold that the constable, who administered the positive evidential breath test to her, advised her without delay afterwards of her right to elect to have a blood sample taken instead of accepting the breath test result as conclusive.
[3] On that ground, Ms Zhao contends, therefore, the Judge was wrong to hold the positive breath test result to be admissible against her to prove the offence of which he convicted her.
Prosecution evidence
[4] At 7.23 pm, according to the record he kept relying on his cell phone, Constable Le’Au attended a motor accident at the intersection of Epsom Avenue and Manukau Road, Auckland. He spoke to one of the drivers, who told him that the other driver, Ms Zhao, had caused the accident and was being treated in the ambulance already there.
[5] At 7.42 pm, after Ms Zhao had received attention and had been found uninjured, the constable required her to undergo a breath screening test. According to his notes made shortly after at the police station, Ms Zhou’s speech was slurred, her eyes bloodshot, she smelled of alcohol, and she admitted that she had just had a bottle of wine at a Greenlane restaurant.
[6] At 7.43 pm the constable required Ms Zhao to accompany him to the Mt Wellington police station for an evidential breath test, blood test, or both, and advised her of her NZBORA rights. However, because he was the only officer at the accident, they had to wait until other officers arrived; a delay not in issue on this appeal.
[7] At the Mt Wellington police station the constable began to fill out the standard breath and blood alcohol procedure check sheet. He then advised Ms Zhao a second time of her NZBORA rights and, at 8.13 pm, had her sign the advice form to confirm that she understood what he had explained to her. She said that she did not wish to speak to a lawyer.
[8] At 8.14 pm the constable required Ms Zhao to undergo an evidential breath test. Ms Zhao proved incapable and the result was an incomplete test. The constable asked Ms Zhao if she wished to give a blood sample instead. She said she wanted to attempt the breath test again and so, at 8.17 pm, the constable required her to undertake it a second time.
[9] To supply two breath samples, as she had to, Ms Zhao made four attempts. She succeeded on her second and fourth attempts. Both gave positive results. The former was 776 micrograms, the latter 786 micrograms; and the former and lower result was the operative result.
[10] At 8.27 pm, the constable said, he told Ms Zhou immediately and without delay that the result was positive. He then read out to her the standard advice of evidential breath test form, which she signed at 8.29 pm. He advised her of her NZBORA rights a third time and at 8.30 pm she signed that form also.
[11] At 8.31 pm the constable allowed Ms Zhao 10 minutes within which to elect whether to accept the result or to provide a blood sample and when at 8.43 pm, 12 minutes later, she said she did not want to provide a sample, he began to complete a summons to her, alleging the excess breath alcohol offence she was convicted of, and a notice suspending her from driving for 28 days.
[12] At that point, Ms Zhao said she did wish to speak to a lawyer but had first to find out the name of one from a friend. The constable allowed her to ring her friend and she made contact with a lawyer, to whom she spoke, ending that call at 9.01 pm.
[13] The constable ended his evidence in chief by saying that there was a 12 minute difference between the times he kept by his cell phone and the evidential breath test device times. His cell phone was 12 minutes fast.
[14] When cross examined, the constable accepted that his test result time, 8.27 pm, and the device printout time, 8.13 pm, differed by 14 minutes. When that and other such discrepancies were put to him, however, the constable adhered to his evidence as I have just set it out.
No case to answer
[15] Ms McDonald, Ms Zhao’s counsel, relying on two decisions of this Court, especially Wheeler v New Zealand Police,1 contended that the Judge could not be satisfied that the constable had, after the second evidential breath test proved positive, advised Ms Zhao ‘without delay’ of her right to elect to have a blood sample taken.
[16] The constable, she submitted, had not accounted for the discrepancies between the times he recorded and those coincident, kept by the device. He had not kept time reliably, even by his own cell phone. On the face of it, after the evidential breath test, the constable had delayed nine - 10 minutes before advising Ms Zhao of the positive test result and of her right to elect to have a blood sample taken.
[17] The prosecutor contended that the constable had kept time according to his cell phone, a common police practice; and that he had kept time scrupulously and accurately. On the constable’s own recorded times there was no delay.
[18] Judge Field held that, in contrast to Wheeler, the officer’s recorded times were adequate and reliable, and according to those times he had not delayed in advising Ms Zhao of the breath test result or of her right to have a sample taken. He entered the conviction under appeal.
Status of requirement
[19] Ms Zhao’s offence, under s 56(1) of the Land Transport Act 1998, lay in driving while the proportion of alcohol in her breath ‘as ascertained by an evidential breath test … under s 69, exceeds 400 micrograms of alcohol per litre of breath’.
[20] In Aylwin v Police, the Supreme Court confirmed that, to prove that offence, one of the four matters the prosecution has to establish is ‘that (the motorist) was advised of his right to have a blood test’; and s 77(3)(a), from which that fourth necessity derives, renders a positive evidential breath test inadmissible unless the
officer advises the motorist:2
without delay after the result of the test is ascertained, that the test was positive and that if the person does not request a blood test within 10 minutes … the test could of itself be conclusive.
[21] Section 64(2) then spares the prosecution having to prove that the officer complied strictly with that duty, as long as it can establish that he or she complied with it reasonably. Section 64(2) says:
It is no defence to proceedings for an offence that … section ( ) … 77 has not been strictly complied with or has not been complied with at all, provided that there has been reasonable compliance …
[22] What is ‘reasonable’ under s 64(2) must be set against the purpose of s 77(3)(a)(i), which is to ensure that the motorist is informed ‘without delay’ of his or her ultimate safeguard. As the Supreme Court recognised in Aylwin, a motorist’s right to have a blood sample taken, and thus to displace a positive breath test result with that of a blood sample analysis, protects the motorist ‘against the consequences
of an error in a breath screening test or an evidential breath test’.3
[23] As the Supreme Court also later said in Birchler v NZ Police,4 the statutory breath/blood alcohol testing process contains a series of ‘preconditions’. If they are not complied with strictly, or reasonably in the extended sense that s 64(2) speaks of, there may be ‘no lawful basis’ for the process continuing, as in that case; or, as here,
for the positive breath test result becoming admissible. Section 30 of the Evidence
Act 2006 does not apply.
[24] The Supreme Court did not state that the four matters essential to the offence are elements to be proved beyond reasonable doubt, or that any are procedural matters to be proved to the balance of probabilities. Nor did it state to what standard the ‘preconditions’ must be proved. It was clear, as to both, that the prosecution alone carries the onus.
‘Without delay’ cases
[25] In a series of cases this Court has ruled, in a manner consistent with those two Supreme Court decisions, that positive breath test results are inadmissible unless the prosecution demonstrates, on the officer’s record, either that the s 77(3)(a) advice was given without delay or was given within a reasonable time under s 64(2).
Unexplained delays ranging between nine – 11 minutes have been found to be fatal.5
[26] A related theme in those cases is that the defence carries no duty to identify delay as an issue, let alone any under s 92 of the Evidence Act 2006 to cross examine on it. A yet further related theme is that where the prosecution has fallen short it would be wrong, as a matter of policy, to allow the prosecution a second chance by way of rehearing. That could encourage loose prosecuting, to the prejudice of those charged.
[27] One of those cases is Wheeler v New Zealand Police, on which the defence relied at first instance and which Judge Field distinguished. There Duffy J encountered the difficulty Ms Zhao contends the prosecution faces in this case.
[28] There the officer gave evidence as to the time at which each phase of the process began or was completed, relying on his watch. He was not cross-examined. The defence there, as here, then contended that on the constable’s evidence there was
no case to answer. To the extent that his recorded times ought to have coincided with
5 Talwar v New Zealand Police [2013] NZHC 315, [2013] NZAR 291; Cullen v New Zealand
Police [2014] NZHC 1252.
those given by the evidential breath testing device, they differed and differed so unevenly as to be inaccurate and unreliable.
[29] The officer there noted that he required the appellant to undergo the evidential breath test at 8.34 pm, whereas the device recorded that the test began at
8.28 pm, a six minute discrepancy. Then, he noted that he advised the appellant of the result at 8.41 pm, whereas the device recorded that it had been given at 20:31 pm, a 10 minute discrepancy. When compared with the device times his times differed as between themselves by four minutes.
[30] Duffy J assumed the device to be accurate (a certificate of compliance had been produced). Thus, she concluded, the officer could not have been accurate unless the appellant had delayed beginning the breath test for four minutes. But as to that there was no evidence and, furthermore, the officer appeared unaware that there was a discrepancy between his watch and the device. He had not attempted to synchronise them, as Duffy J considered he should have.
[31] Even on the officer’s times, Duffy J said, he had delayed seven minutes after obtaining the positive result in giving the appellant the advice called for. He obtained the result at 8.41 pm and gave the advice at 8.48 pm. But the likely delay was even greater. To calculate that delay the Judge accepted the officer’s recorded time as to when he gave the advice, 8.48 pm, because she had no other source for it. She then related it to the time at which the device recorded it gave the result, 8.31 pm. That gave a 17 minute delay.
[32] This was the most extreme delay possible. It incorporated the more extreme of the two discrepancies between the officer’s times and the device times, 10 minutes. That between the start times was six minutes. But, on the evidence, Duffy J held, that more extreme delay was the only safe inference. It was fatal to the admissibility of the evidential breath test result.
[33] By contrast, in Leota v New Zealand Police,6 where there was by analogous reasoning, a delay lying conceivably between seven – 19 minutes, but seven minutes
6 Leota v New Zealand Police HC Auckland CRI-2009-404-373, 4 March 2010.
was accepted not to involve an unreasonable delay, Ellis J upheld the decision of the Judge at first instance to accept the officer’s times and, on those times, to conclude that there was no unreasonable delay.
[34] As these two cases illustrate, everything depends on how scrupulously the officer has kept the time record required by the procedure sheet, how completely those times have been given in evidence in chief, and how closely they correspond with those coincidentally kept by the evidential breath testing device. That is so in this case too.
Appellant’s submissions
[35] Ms McDonald submits for Ms Zhao that the constable’s evidence that there was a constant 12 minute difference between his cell phone times, and those coincident, kept by the evidential breath testing device, is not consistent with the evidence.
[36] He said he first required Ms Zhao to undergo the evidential breath test at
8.14pm, whereas the device recorded that time as 8.04pm, a 10 minute discrepancy. He then said he obtained the printout at 8.27 pm, whereas the time on the printout was 8.13 pm, a 14 minute discrepancy. Those discrepancies differ as between themselves by four minutes, just as in Wheeler. The constable must have been inaccurate.
[37] To fix the most extreme delay likely Ms McDonald takes the officer’s recorded start time, 8.14 pm, and relates it to the time he advised Ms Zhao of the result, 8.29 pm, 15 minutes. She then subtracts the time the breath test took, nine minutes (the device printout records the first event at 8.04 pm and the last at
8.13 pm); and thus, she contends, the constable delayed giving the advice by six minutes.
[38] Accordingly, Ms McDonald submits, the constable did not comply with his s 77(3)(a) duty, without delay, even reasonably for the purpose of s 64(2). The test result was inadmissible and the Judge was wrong to admit it.
Conclusions
[39] On the constable’s complete evidence, I find however, the discrepancy between his cell phone times and those coincident, kept by the breath testing device, was a constant but not 12 minute discrepancy. It was closer to 13 – 14 minutes.
[40] The constable’s start time for the second test was not 8.14 pm, as recorded on the procedure sheet. That was his start time for the first incomplete test. That for the second test was three minutes later at 8.17 pm and, when related to the device start time, 8.04 pm, results in a 13 minute discrepancy. There is, then, a one minute difference between that discrepancy and the 14 minute discrepancy at the end of the test.
[41] That one minute difference is insignificant. The event times the constable had to record on the procedure sheet are not identical to those the device records. The time when he required Ms Zhao to undergo the test had to precede the first event the test recorded, an air blank before a calibration check. The last event the device recorded, another air blank, following a calibration check, had to precede the time at which the device printed the result and the constable came under a duty to advise Ms Zhao without delay of that result and her right of election.
[42] On the constable’s complete evidence, therefore, I conclude that the Judge was entitled to hold that he had complied with his s 77(3)(a) duty without delay and had no need to consider a Wheeler calculation with the difficulties that entails. I
dismiss the appeal.
P.J. Keane J
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